Vaidya Kuldip Raj Kohil vs State Of Maharashtra And Anr.
2002 Latest Caselaw 273 Bom

JUDGMENT

A.B. Palkar, J.

1. Petitioner is professor and head of the department in the department of Kaya Chikitsa in R. A. Podar Ayurvedic College, Mumbai while respondent No. 2 is Reader in the same department. Respondent No. 2 had challenged the appointment of petitioner as Reader in Kaya Chikitsa before Maharashtra Administrative Tribunal (MAT) in original application No. 843 of 1996 which came to be dismissed on 12-9-1996. Thereafter respondent No. 2 filed Writ Petition being Writ Petition No. 1602 of 1998 through Maharashtra Under Privileged Teachers Association of which respondent No. 2 is member, before the High Court for the same reliefs. The said Writ Petition was disposed of as withdrawn vide order dated 20-8-1998 and thereafter respondent No. 2 filed another application being application No. 555 of 1998 before MAT challenging selection and appointment of petitioner. During the pendency of that matter respondent No. 2 filed present complaint suppressing the above stated material facts.

2. Petitioner applied for the post of Reader in Kaya Chikitsa in 1988 as he possessed the required qualification. The prescribed qualification being 3 years teaching experience in recognized institute. Since petitioner possessed the qualification, he applied through the M.P.S.C. for the aforesaid post and in due course after following the procedure prescribed, he was selected for that post and appointed as Reader in Kaya Chikitsa in R. A. Podar Ayurvedic Medical College, Worli, Mumbai in February, 1990.

3. According to the petitioner he has the required medical qualification and a good academic career. Respondent No. 2 was senior in service to petitioner as a Reader in the department of Kaya Chikitsa. However, petitioner came to be selected for the post of Professor and joined in 1997. Respondent No. 2 having failed in the selection process approached before the Maharashtra Administrative Tribunal (MAT) after lapse of six years by filing original application No. 843 of 1996 and thereafter one original application was summarily dismissed. In the complaint respondent No. 2 has made out a case that he was initially appointed as Demonstrator and thereafter selected as a Lecturer in Kaya Chikitsa by M.P.S.C. and was appointed accordingly and in the year 1988 he was promoted by the Department to the post of Reader in Kaya Chikitsa. Petitioner Accused was previously working as a Medical Officer in Mahatma Gandhi Institute of Medical Sciences (Allopathic) at Sevagram, Wardha and was appointed as "Reader" in R. A. Podar College in Kaya Chikitsa by the Government of Maharashtra by its order dated 16-10-1989 in pursuance of his selection through M.P.S.C. According to the respondent, petitioner was working in the employment as Medical Officer at Mahatma Gandhi Institute of Medical Science (Allopathic) and was not qualified for the post of Reader in R. A. Podar Ayurvedic College, Mumbai. However, he was selected as Lecturer on that basis and at that time he had not produced any certificate showing that he was working as a Lecturer in the specific subject 'Kaya Chikitsa' for three years which was an essential qualification and a condition precedent for appointment as Reader. Thus

according to the respondent in the absence of required certificate from the recognized Ayurvedic Institute, petitioner came to be appointed in Ayurvedic College as a Reader in the subject of Kaya Chikitsa. The certificate of Mahatma Gandhi Institute of Medical Science is not a proper certificate as it is not a recognized Ayurvedic Institute under Section 27 of the Maharashtra Medical Practitioner's Act, 1961, and on the basis of such a certificate, the petitioner could not have been selected. Thus the petitioner was appointed as a Reader on the basis of a false and fraudulent information and documents. Despite the illegal selection, petitioner continues in service as he has approaches in the department. It is significant to note that in the complaint, it is stated by the respondent that he did not take any action in the matter for the period of about 9 to 10 years or so as he was expecting the Government to act.

4. In the year 1996, two posts for Professor were advertised and the respondent applied along with the petitioner. Petitioner came to be selected whereas respondent was not selected for that post when in fact respondent was senior having 19 years' experience and petitioner's experience was only of 6 years and therefore he filed complaint alleging offence under Section 420, 463 and 471 of Indian Penal Code against the petitioner. Learned Magistrate without recording even the verification statement of the complainant forwarded the complaint for investigation under Section 156(3) of Civil Procedure Code. After investigation into the complaint, the Police gave report to the learned Magistrate that no offence whatsoever was disclosed. The certificate produced by the petitioner was found genuine and there was no forged document produced by the petitioner before the M.P.S.C. However, thereafter learned Magistrate directed further investigation which was also conducted and again report was submitted to the same effect to the learned Magistrate. Learned Magistrate rejected the report and passed impugned order issuing process for offence under aforesaid Sections.

5. In reply one Shri Rameshchandra R. Padmavar, Director of Ayurved, Worli, Mumbai filed affidavit wherein, it is clearly stated that the selection of petitioner was proper. The investigation conducted by the Police was also to the said effect that there was no offence and investigation was conducted in proper manner. The certificates produced by the petitioner was verified from M.P.S.C. as found to be genuine.

6. One Shri Shankar B. Surve, Assistant Inspector has also filed an affidavit that a report was already submitted to the Magistrate that no offence was disclosed. All the documents produced before the M.P.S.C. by petitioner were found genuine. Petitioner had therefore not cheated anybody and had not committed any offence.

7. Mr. Mundergi, the learned counsel for the petitioner seriously contended that in this case, the Learned Magistrate should not have issued process under any of the provisions of Indian Penal Code as complaint discloses no offence. The investigation was conducted by the Police as per the directions of the learned Magistrate. Report submitted was that no offence whatsoever is disclosed. In spite of the adverse Police report without giving any independent reasons as to how offence was disclosed, the learned Magistrate issued the process. The learned Magistrate has not given any reason as to why he has come to the conclusion that offence is disclosed either from the complaint or from the

investigation papers submitted by the Police. After narrating facts stated in the complaint and the concerned provisions of law, the learned Magistrate proceeded to observe in para 6, it appears that the main allegation is that the accused got himself selected through M.P.S.C. for the post of Reader in Kaya Chikitsa when he did not have the requisite qualification. The main allegation is that he managed and obtained some certificate showing as if he has full fledged experience in Ayurvedic subject in Kaya Chikitsa and got himself selected through M.P.S.C. by misleading the selection committee and misleading the Government of Maharashtra. It is noteworthy to mention that the M.P.S.C. does not claim to have been mislead by any certificate and it is also not found after investigation that any certificate produced by the petitioner was false. Even presuming for sake of argument that the petitioner was having certificate from the institution which according to respondent was not a proper institution to issue certificate, it was matter for the M.P.S.C. Even the Maharashtra Administrative Tribunal has upheld the selection of petitioner for the post. It was challenged after a lapse of more than 6 years. Petitioner and respondents were working in the same institution. What was expected of the learned Magistrate was to find out whether any offence is made out in the complaint. The entire order of learned Magistrate does not even remotely indicate how he came to the conclusion that offence is disclosed. He has observed that at this stage main allegation is that documents produced before the Selection committee of the M.P.S.C. were false and the matter can be decided only after a trial. This reasoning of the learned Magistrate shows that he was not at all convinced that any offence is made out. The learned Magistrate in his order simply stated that it is a fit case for full fledged trial which reasoning is incomprehensible and it appears that for some reasons not on record the learned Magistrate took cognizance of offence without having been himself satisfied that any offence was in fact committed. The order of learned Magistrate if read in its entirety, clearly shows that the Magistrate was aware that complaint discloses no offence and in spite of having become aware, he issued the process for reasons which can only be extraneous.

8. The order not only suffers from non-application of mind but clearly shows that it is passed for some extraneous considerations. As a Senior Additional Chief Metropolitan Magistrate he is expected to know what is the effect of summoning a person as accused to criminal Court. The learned Magistrate did not give any reason for differing from the Police Report. There was no allegation of forgery. The allegation was that petitioner did not possess the required qualification as he was not having experience of working in any Ayurvedic Institution. The certificate issued by Sevagram Hospital was not even suspected. Whether such certificate can be accepted was for the M.P.S.C. to decide. Their decision was challenged before MAT after an abnormally long period of time and the challenge met with summary dismissal. A writ petition on same lines filed in High Court was also dismissed. Thereafter to cause harassment to the petitioners recourse was taken to Criminal Court. The Court lend necessary assistance to the complainant to abuse the process of law by passing a vague order consciously. It is not a case of some order passed hurriedly due to pressure of work. The learned Magistrate has passed an order running in seven pages which does not speak of a single sentence as to how and what

offence is committed. I am convinced that the learned Magistrate also found that no offence is disclosed even thereafter going out of way he wanted to help the complainant. The process of law was misused not only by the complainant but also by the learned Magistrate. It is a clear case of misuse of judicial powers by the Court.

9. So far as complainant is concerned, he has intentionally resorted to Criminal Court and used the process of law to take revenge by filing false and frivolous complaint. He must be saddled with costs, which I quantify to Rs. 10,000/- to be paid to the petitioner by the 2nd respondent.

10. Petition is allowed. Order of learned Magistrate dated 29-10-1998 passed in Misc. Application No. 18/Misc./1997 (C.C. 2158/S/1998) is quashed and set aside. The complaint filed by respondent No. 2 is dismissed. Respondent No. 2 shall pay Rs. 10,000/- as costs to the petitioner for filing such total false and frivolous complaint causing mental agony and torture to the petitioner.